Any reason not to terminate?

Mimi

We've had an employee out since April 10 with a knee - not WC - had surgery; kept out of work by physician not released to full duty yet and doesn't see the doctor again until August 23rd; was a route driver and, of course, his route has long since been covered. STD benefits ran out last week. Are we under any obligation at all to NOT terminate? Even if we have a route open when and if he gets a full relase, are we required to offer it to him?

Theresa Gegen TX

If you have applied your company policies consistantly, and he has exhausted all leave, he can be terminated EXCEPT if he is disabled under the ADA AND granting additional leave would be a reasonable accomodation. The only cases I have read about it, say more leave may be a reasonable accomodation, if the employee has a fairly definate return to work date (for example, if his doctor says that the employee will be able to return in 2 weeks after some treatement is completed). If there is no definate return date, then unspecified leave would probably not be reasonable.

If the employee is terminated, then later returns will a full release, and a position is open, there is no requirement that this ex-employee get the position. The most qualified applicant should get the position (which very well may be this ex-employee). This ex-employee should be allowed to apply just like everyone else.

Good Luck!

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 08-01-02 AT 10:08AM (CST)[/font][p]Not knowing what your policies are, I would ask what status you have had him in since July 3rd. Assuming he was eligible for FMLA, it should have expired on or about July 3. Is there a particular reason that another month has passed since FMLA ended? My guess is that if this is routine ACL or cartilage surgery it will not rise to the level of ADA protection but we really can't assume that yet, can we. If he exhausted FMLA, did not return when expected to, was not and is not covered by ADA, is out of leave according to your policies and your state requires no add-on type of FMLA, you may be safe in considering termination. Just an opinion x:-)

B_Jackson

In addition to Don's suggestion, do you have unpaid personal leaves of absence with no guarantee of a position at the end of the absence? Do you have a lay-off policy that would be in effect should the person return, and there are no available positions? Must the position offered be the same or comparable to the position that the person left? These are other options you may wish to consider other than termination.